New laws fail to ensure equality

Penda lives in a village in Limpopo with her three children and another dependant. When her mother died she should have shared the inheritance of their parents’ home with her brother. Instead, he claimed the home as his and she was forced to leave.

This is the kind of situation that the government sought to stop in 2004 when the Constitutional Court of South Africa decided the high profile case called Bhe v Magistrate Khayelitsha.

Until then, if a family head (usually, a man) who was governed by customary law died intestate (without making a will), in most cases his property was inherited according to the rule of male primogeniture under section 23 of the Black Administration Act. This rule entitled the eldest son (or eldest male relative of the deceased) to inherit his property. It excluded the dead man’s widow or widows, all female relatives, and all children born outside marriage, from inheriting.

Furthermore, as in the case of Penda (not her real name), some male heirs exploited the rule of male primogeniture by claiming the right to inherit without taking on the responsibility of care for other family members. The heir’s abuse of his position left the deceased’s dependent family members in dire need of support.

As part of the drive to transform customary family relations in post-apartheid South Africa, in line with the new constitutional rights and principles outlawing discrimination, the Constitutional Court decision in Bhe v Magistrate Khayelitsha abolished the rule of male primogeniture. This was because it was discriminatory against women and children born outside marriage, contrary to constitutional principles. Instead the Court created new rules of inheritance. Examples of these rules are:

a. All estates (in other words, the liabilities and assets of the deceased person) must now be administered under the authority of the Master of the High Court, while in the past estates of black South Africans were administered by magistrate courts only.

b. If the deceased is survived by one spouse, the spouse inherits the entire estate. Where the deceased is not survived by a spouse or spouses, but descendants (children), the descendants, including extra-marital children, inherit the entire estate.

c. Where the deceased is survived by both parents, but not by a spouse (s) or descendants, the parents inherit in equal shares; and .

d. Where the deceased is not survived by a spouse, descendants or parent(s), the nearest blood relation inherits.

But despite these new rules, some members of the deceased’s family who should inherit still do not inherit. For example, some daughters (as in the case of Penda), widows and extra-marital children are excluded from the estate of a deceased family head. There are several reasons for this, but we will focus on one: the fact that many estates are administered and distributed informally within the family. In other words, they are not administered and distributed by the Master’s office.

Our study of the implementation of the Recognition of Customary Marriage Act and of intestate succession rules found that in most cases, when a family member died, the estate was administered outside the new rules, and the families did not follow the new rules when distributing the estates.

In some cases, this was because they were not aware of the new rules. In other cases, participants in the study said they did not like or approve of the new rules because they did not include the customary law idea of family property. According to customary law, family property belongs to the deceased’s family. At death the property is not inherited but given to a “custodian” heir who holds it for the entire family of the deceased (the extended family) for their common use and support in time of need.

For example, one participant who was not in favor of the new rules stated:

There is no estate that [is required] to be administered where family property is concerned. So this type of property cannot be reported and does not get reported at the Master’s office when the current holder or occupier is dead. And so [the new rules] cannot be applied to this type of property.

This creates the problem that rightful heirs according to the new rules are excluded from inheriting, as stated. In this respect, the study found that notwithstanding the idea of family property and its gender-neutral connotations, there are instances of women being chased out of the family property by male heirs. This practice perpetuates and reinforces the abolished principle of male primogeniture and inequality in inheritance.

In other cases, the lawful beneficiaries, according to the new rules, are made to inherit under conditions defined by members of the deceased’s family.

All these cases demonstrate that the objectives of the new rules are not being met in practice. There is, therefore, a need for measures to improve the implementation of the new rules to realise the objective of eradicating discrimination against women and children born outside marriage in inheritance.

In order to avoid confusion, it is important to say something about legal developments following the new rules issued by the Constitutional Court in the Bhe case.

The new rules were to remain in operation until Parliament enacted legislation to regulate customary succession. In 2010, Parliament enacted the Reform of the Customary Law of Succession and Related Matters Act of 2009, which provides for heirs to intestate estates and the distribution of these estates. The Act came into force on 20 September 2010. From that date, the Bhe rules ceased to exist. This means that people must now use the new rules introduced by the 2009 Act.

However, the 2009 Act has largely simply reproduced the Bhe rules. We therefore believe that the findings of our study on the operation of the Bhe rules in practice will provide some vital lessons on how aspects of the 2009 Act will operate in practice, and what the government should guard against to prevent problems recurring under the new rules of the 2009 Act.

Himonga is the NRF Chair in Customary Law and Moore is in the Department of Sociology at UCT. This is the last in a series of three articles. The study was funded by the South African Research Chairs Initiative of the Department of Science and Technology and the National Research Foundation of South Africa. However, any opinions, findings and conclusions or recommendations expressed in these articles are those of the authors and the National Research Foundation does not accept any liability in this respect.